Friday, August 26, 2016

Fantasy, Cannibalism and the Police Officer

Before we go any further, I should warn you of two things:
One is that this is, necessarily, an unusually long post for this blog; the
other is that the case it examines involves issues that may be offensive to or
upsetting for some readers.

This post examines an opinion from the U.S. Court of Appeals for the 2d Circuit:U.S. v. Valle, 807 F.3d 508 (2015).The court begins the opinion in what is an interesting departure from
how courts usually begin appellate opinions, e.g., Doe was charged with X
crimes based on certain conduct, Doe went to trial and was convicted and now
appeals his/her conviction.

is a case about the line between
fantasy and criminal intent. Although it is increasingly challenging to
identify that line in the Internet age, it still exists and it must be
rationally discernible in order to ensure that `a person's inclinations and
fantasies are his own and beyond the reach of the government.’ Jacobson v. U.S., 503 U.S. 540 (1992).
We are loath to give the government the power to punish us for our thoughts and
not our actions. Stanley v. Georgia, 394 U.S. 557, 565 (1969). That includes the power to criminalize an
individual's expression of sexual fantasies, no matter how perverse or
disturbing. Fantasizing about committing a crime, even a crime of violence
against a real person whom you know, is not a crime.

This does not mean that fantasies are
harmless. To the contrary, fantasies of violence against women are both a
symptom of and a contributor to a culture of exploitation, a massive social harm
that demeans women. Yet we must not forget that in a free and functioning
society, not every harm is meant to be addressed with the federal criminal
law. Because `[t]he link between fantasy and intent is too tenuous for fantasy
[alone] to be probative,’ U.S. v. Curtin,
489 F.3d 935 961 (U.S. Court of Appeals for the 9th Circuit 2007) (en banc) (Kleinfeld, J., concurring),
and because the remaining evidence is insufficient to prove the existence of an
illegal agreement or Valle's specific intent to kidnap anyone, we affirm the
district court's judgment of acquittal on the single count of conspiracy to
kidnap.

U.S. v. Valle, supra.

Before we go any further, I need to remind you that (i)
this is going to be a very long post and (ii) aspects of it will raise issues
that may upset sensitive readers.

The Court of Appeals then took up the facts in the case, explaining
that Gilberto Vallee is a

native of Forest Hills, Queens. At the
time of the events giving rise to his prosecution, he was an officer in the New
York City Police Department living with his wife, Kathleen Mangan, and their
infant daughter in Forest Hills. Valle has no prior criminal record and there
is no evidence that he ever acted violently or threateningly towards anyone.

Valle was, however, an active member of
an Internet sex fetish community called Dark Fetish Network (`DFN’). He
connected with individuals around the world whom he knew only by screen names
such as `Moody Blues’ or “Aly Kahn,” or by email addresses. Valle communicated
with these individuals by email or web chat, usually in the late evening and
early morning hours after his work shift. Many of his Internet communications
involved the transmission of photographs of women he knew—including his wife,
her colleagues from work, and some of his friends and acquaintances—to other
DFN users with whom he discussed committing horrific acts of sexual violence.
These `chats’ consisted of gruesome and graphic descriptions of kidnapping,
torturing, cooking, raping, murdering, and cannibalizing various women.

Valle's online fantasy life was, to say
the least, extremely active during this period. However, there is no evidence
that he ever learned the real identities of the individuals with whom he
chatted, nor is there any evidence that he ever made concrete plans to meet in
person or speak by telephone or web camera with any of them.

In September 2012, Mangan became
concerned about Valle's late-night Internet activities after she found several
disturbing images of dead women on a laptop that the couple shared. She
installed spyware on the computer, which recorded each website entered by the
computer's users and captured screen shots every five minutes. With the use of
the spyware, Mangan found more disturbing pictures and records of websites that
Valle visited. These included detailed emails and chats where Valle discussed
butchering her and raping and torturing other women whom they knew. After
confronting Valle about his computer use and moving out of the home with their
daughter, Mangan contacted federal authorities.

U.S. v. Valle, supra.

The Court of Appeals went on to explain that Valle was

subsequently arrested and charged with
a single conspiracy to kidnap several of the women who were the subject of his
chats. Although he had chatted with numerous individuals he met on DFN, the
Government identified three alleged co-conspirators: Michael VanHise, a man
from New Jersey who was known to Valle as `mikevanhise81@aol.com’ and
`michael19902135@yahoo.com’; an unidentified individual apparently located in
Pakistan who used the screen name `Aly Khan’; and Dale Bolinger, a man in
England who was known to Valle only by his screen name, `Moody Blues.’ And
although Valle had discussed up to one hundred different women in his chats,
the indictment alleged five targets of the kidnapping conspiracy: Kathleen
Mangan, his wife; Alisa Friscia, Mangan's former co-worker; Andria Noble;
Kristen Ponticelli; and Kimberly Sauer, a former college classmate of Valle's
who was living in the Baltimore area.

U.S. v. Valle, supra.

The Court of Appeals then took up the reason the case was
before it, noting that,

[i]n a thorough and thoughtful 118–page
opinion, the district court (Gardephe, J.) granted Valle's Rule 29 motion with respect to the conspiracy charge. 301 F.R.D. 53 (S.D.N.Y.
2014).While remaining `mindful of the
jury's critical role in our legal system,’ Judge Gardephe acknowledged his
responsibility to ensure that the government satisfies its burden of
establishing proof beyond a reasonable doubt. Id. at 80. Emphasizing `the unique circumstances of this
extraordinary case,’ he concluded that, notwithstanding the jury's verdict to
the contrary, the prosecutors had failed to prove beyond a reasonable doubt
that Valle and his alleged co-conspirators had entered into a conspiracy to
kidnap or that Valle had formed the requisite specific intent to kidnap. Id. at 62, 89.

In reaching this conclusion, Judge
Gardephe cited extensively to the testimony of FBI Special Agent Corey Walsh,
the lead agent assigned to review and analyze Valle's emails and chats whose
testimony had formed (in the court's view) the `centerpiece’ of the
Government's case and the `foundation’ of its argument that Valle had acted
with criminal intent. Id. at 83-84.
Agent Walsh testified that he, along with prosecutors and other case agents,
reviewed all of the emails and chats found on Valle's computer and concluded
that Valle's conversations with 21 of the 24 individuals whom he `met’ on DFN
were `fantasy.’ SA 8, 128.

At the same time, the prosecution team
concluded that Valle's conversations with the three alleged co-conspirators
contained what they termed `elements of real crime’ because they `described
dates, names, and activities that you would use to conduct a real crime.’ 301
F.R.D. at 65. There was no evidence that Agent Walsh or any of the other
members of the prosecution team had any specialized training or experience that
would render them particularly competent to distinguish between `real’ and
`fantasy’ chats. Indeed, Agent Walsh conceded that the `fantasy role-play’
chats and emails shared many of the same features as the `real”’ chats and
emails that purportedly reflected criminal intent, including dates for planned
kidnappings, conjured acts of sexual violence, prior surveillance that Valle
fantasized about having conducted, and fantastical elements such as human-sized
ovens and rotisseries for cooking victims.
Id. at 65-66.

U.S. v. Valle, supra.

The District Court Judge’s opinion then went on to explain
that,

[a]fter an exhaustive review of the
chats and emails introduced at trial, Judge Gardephe concluded that there was
no discernible difference between the `real’ and `fantasy’ chats:

Both sets of chats involve discussions
about Facebook photographs of women Valle knows; dates for planned kidnappings;
prices Valle will charge for kidnapping these women; surveillance Valle has
allegedly conducted of these women; the use of chloroform to incapacitate
victims; acts of sexual violence that will be perpetrated on these women; and
fantastical elements such as human-size ovens and rotisseries, and the
construction of soundproofed basements and pulley apparatuses that will be used
for purposes of torture.

Id. at 60. Accordingly, he
concluded that no reasonable juror could have found beyond a reasonable doubt
that the allegedly `real’ chats evinced criminal intent any more than did the
acknowledged `fantasy’ chats. Id. at 84.

The district court further concluded
that the Government's remaining evidence, including Valle's Internet search
history and `real life’ encounters with several of the alleged targets, was
insufficient to establish either a genuine agreement to kidnap or Valle's
specific intent to kidnap in light of the fantastical nature of the chats and
the weakness of the remaining evidence. Id. at 90. Judge
Gardephe stressed, among other things, that there was no evidence that any of
the alleged conspirators ever exchanged contact information or sought to learn
each other's true identities, and that the communications were episodic, with
months often passing in between. Id. at 60. When dates for
planned kidnappings came and went, Valle and his alleged co-conspirators would
`simply begin discussing another woman as a potential target, in the same
manner that a consumer of pornography might turn to a different image,
photograph, or movie.’ Id. at 89. They also had agreed to the
impossible—kidnapping three different women in three different places spanning
thousands of miles on the same day—and Valle had `provided his alleged
co-conspirators with a veritable avalanche of false, fictitious, and
fantastical information concerning himself and the steps he had allegedly taken
to facilitate a kidnapping.’ Id. at 61, 90. These facts, Judge
Gardephe reasoned, were `entirely inconsistent with the notion that Valle was
engaged in a genuine kidnapping conspiracy’ and, on the other hand, `entirely
consistent with Valle's defense that he was engaged in fantasy role-play’ and
that the intent of the conversations was simply `mutual fantasizing.’ Id. at
60, 90. Accordingly, Judge Gardephe concluded that the Government's proof had
not established Valle's guilt beyond a reasonable doubt and granted Valle's
motion for a judgment of acquittal.

U.S. v. Valle, supra.

The opinion goes on to explain that,

[f]or many of the same reasons, Judge
Gardephe conditionally granted Valle's motion for a new trial on the ground
that the jury's verdict was contrary to the weight of the evidence. Id. at
104. Although the basis for his ruling was limited to the weight of the
evidence, Judge Gardephe also expressed serious concern about the prosecution's
trial tactics and the effect they may have had on the jury. Specifically, he
questioned the propriety of the prosecution's repeated references to Valle's
status as a police officer, such as arguments that `it is not ok’ for someone
in that position to engage in such fantasies.

`Once the lies and the fantastical
elements [of the chats] are stripped away,’ Judge Gardephe concluded, `what is
left are deeply disturbing misogynistic chats and emails written by an
individual obsessed with imagining women he knows suffering horrific
sex-related pain, terror, and degradation.’ Id. at 61. `[I]n
what was an extraordinary case involving highly inflammatory and emotional
subjects,’ the prosecution's questionable conduct had `raise[d] concerns’ that
the jury's verdict was the product of `disgust and revulsion’ rather than reason
and that Valle had been `held to a higher standard because of his status as a
police officer.’ Id. at 105–07, 109.

Finally, the district court denied
Valle's motion for a judgment of acquittal as to the CFAA count. While acknowledging
the existence of a `vigorous judicial debate’ over the meaning of `exceeds
authorized access,’ the court nonetheless concluded that Valle's conduct fell `squarely
within the plain language’ of the statute because Valle had not been authorized
`to input a query regarding Hartigan's name’ without a law enforcement reason
for doing so. Id. at 111, 113.

Valle was sentenced to 12 months in
custody (which was principally a sentence of time served because he had already
spent 20 months in pretrial detention), one year of supervised release, and a
$25 special assessment. The Government has appealed the judgment of acquittal
on the conspiracy count and Valle has appealed his conviction on the CFAA
count.

U.S. v. Valle, supra.

The Court of Appeals began its analysis of the issues
involved in Valle’s appeal with the Government’s appeal of the judgment of
acquittal, noting that in order to

sustain a conspiracy conviction, the
prosecution must prove beyond a reasonable doubt that the person charged
with conspiracy knew of its existence and knowingly joined and participated in
it. U.S. v. Rodriguez, 392 F.3d 539,
545 (U.S. Court of Appeals for the 2d Circuit 2004). The Government must also
prove, beyond a reasonable doubt, that the defendant possessed the specific
intent to commit the offense that was the object of the conspiracy—here,
kidnapping. U.S. v. Torres, 604
F.3d 58, 65 (U.S. Court of Appeals for the 2d Circuit 2010).This requirement is
contextual: the prosecution's proof must be considered in relation to the rest
of the evidence presented at trial, rather than in isolation. . . .

At trial, the prosecution built its
case around Valle's chats and emails with his alleged co-conspirators. On
appeal, it argues that these communications, `taken at face value, were fully
sufficient to establish his intent to join a kidnapping conspiracy.’ Gov't
Opening Br. 32. We disagree.

As previously explained, Valle's chats
and emails with the three alleged co-conspirators were part of a much larger
set of chats and emails with 24 individuals on DFN. According to the
prosecution, the former were unique because they evinced `real’ criminal intent
while the rest did not. After reviewing the chats and emails introduced at
trial, the district court concluded that the `real’ and `fantasy’ chats were
indistinguishable. 301 F.R.D. at 86.

Our review of the record yields the
same conclusion. In both groups of chats, Valle transmits Facebook images of
women and offers to kidnap and sell them on a `cash upon delivery’ basis, and
in both groups he expresses a desire to kidnap, rape, torture, and eat women
whom he knows. In both groups Valle also claims to conduct surveillance of
potential victims and discusses his intentions to kidnap them using chloroform
and ropes. And in both groups he describes the various devices he `owns’ that
will assist in the process. Many of the `fantasy’ chats also do not explicitly
state that the participants are engaged in fantasy and are as graphic and
detailed as the `real’ chats. For example, the `real’ chats and the `fantasy’
chats both include haggling over the kidnapping fees that Valle `wanted to
charge,’ although the prosecution argues that this haggling is unique to the
`real’ conspiracy with VanHise. See id. at 84. The `real’ chats thus contain the same core elements as
the chats the Government concedes are `fantasy.’

Moreover, the `real’ chats take place
in the same time period as the admittedly “`fantasy’ chats. On the evening of
July 12, 2012, for instance, Valle discusses kidnapping Andria Noble with Aly
Khan in a `real’ chat and, an hour later, discusses kidnapping Noble with someone
else in a chat that was `fantasy.’ The prosecution thus proposed that Valle simultaneously agreed
to kidnap Noble while also engaging in role-play about the same woman. This
temporal proximity casts further doubt upon any rational distinction between
the chats.

Even when `taken at face value,’ the
`real’ chats contain numerous other indicia of fantasy. For example, the
prosecution alleged that Valle formed a genuine agreement with the specific
intent to kidnap three different women in three different locations on the
same day. First, Valle agreed with Aly Khan to lure Mangan to either India or
Pakistan on February 20, 2012 and to slaughter her there. Second, he agreed
with VanHise to kidnap Alisa Friscia in Manhattan on February 20, 2012 and
deliver her to an unknown location in exchange for $4,000 in cash. Finally,
Valle agreed with Aly Khan to kidnap Andria Noble on February 20, 2012 from her
home in Columbus, Ohio. On appeal, the prosecution posits that the jury could
have reasonably concluded that Valle seriously planned to kidnap Mangan, Firscia,
and Noble on the same day and failed
to go through with the kidnappings only because `an obstacle arose,’ or because
he had a `fear of getting caught.’ Gov't Opening Br. 54. We believe that no
rational juror could reach this conclusion for the reason noted by Judge
Gardephe:`The notion that Valle had
resolved to lure Mangan to India or Pakistan (to slaughter with Aly Khan],
while at the same time kidnapping Andrea Noble in Columbus, Ohio, and
kidnapping Alisa Friscia from the Upper East Side of Manhattan, is simply
outlandish. 301 F.R.D. at 90.

U.S. v. Valle, supra (emphasis in the original).

The District Court Judge’s opinion goes on to explain that
in addition to

plots that would put the same person in
different places at the same time, the `real’ chats are replete with references
to fantastical elements such as a human-sized oven, a spit, and a remote cabin
in the woods, none of which Valle owned or made any effort to acquire. The
fantastical nature of the `real’ chats is bolstered by the entirely virtual
nature of the alleged conspirators' relationships. Valle had no pre-existing
relationship with those with whom he chatted, and he formed no real life
relationship with any of them. He did not know their real names and, indeed,
could not be sure of their genders, ages, or locations. Neither he nor his
alleged co-conspirators made any effort to communicate by telephone, text
message, or web camera, much less meet in person. And weeks or months could go
by between Valle's chats with any particular individual. While anonymity is not
uncommon in Internet communications, the fantastical elements of the chats
combined with the impersonal nature of the interactions provides pervasive and
unmistakable indicia of deep fantasy.

Consequently, we need look no further
than the prosecution's own work product to find reasonable doubt. The
prosecution divided the exchanges into two groups and undertook to convince the
jury to convict Valle on the theory that one group was fantasy and the other
proved criminal intent. This exercise failed because the distinction the
prosecution urged does not exist in this case. There is simply no material
difference between the two groups of chats. We do not believe that the
prosecution satisfies the proof beyond a reasonable doubt standard by relying
upon a distinction that is untethered to reason or common sense.

Perhaps realizing that there is no
actual distinction to be drawn between the `real’ and `fantasy’ chats, the prosecution
now contends that it `did not take a position one way or the other as to
whether [Valle's online communications with people other than the named
co-conspirators] constituted genuine planning, puffery, preparatory
conversations, role-playing, or something else entirely.’ Gov't Opening Br. 39.
The record, however, belies this assertion.

U.S. v. Valle, supra.

The opinion goes on to explain that

Agent Walsh was a key witness in the
prosecution's case. He was the lead investigative agent and a majority of the
chats and emails introduced were admitted into evidence through his testimony.
He unequivocally testified, often in response to the Government's own
questions, that the Government considered Valle's chats with 21 other
individuals to be `fantasy’ and Valle's chats with the three alleged co-conspirators
to be `real.’ The following exchanges between Agent Walsh and AUSA Hadassa
Waxman on direct examination are illustrative:

WAXMAN: When you were reviewing those
emails between [Valle] and the two dozen individuals, did you separate them
into groups?

WALSH: I did.

WAXMAN: What were those groups?

WALSH: Ones that I believe that were
real and ones that I believe were fantasy.

WAXMAN: Why did you make that
separation?

WALSH: In the ones that I believe were
fantasy, the individuals said they were fantasy. In the ones that I thought
were real, people were sharing ... real details of women, names, what appeared
to be photographs of the women, details of past crimes and they also said that
they were for real.

WAXMAN: What caused you to make that
separation between the emails you found that had realistic characteristics and
those that were fantasy?

WALSH: Only my interest in obtaining
information about that real criminal activity.

SA 8–9.

WAXMAN: Agent Walsh, approximately how
many of Officer Valle's emails and electronic chats did you review in
connection with your investigation?

WALSH: Thousands.

WAXMAN: We just reviewed over yesterday
and today about 40, is that right?

WALSH: That's correct, ma'am.

WAXMAN: Why did you focus on these 40
particular communications?

WALSH: We believed that these chats and
e-mails contained elements of real crimes.

WAXMAN: And why did you come to that
conclusion?

WALSH: They described dates, names, and
activities that you would use to conduct a real crime.

WAXMAN: And did you cast aside a
certain number of emails as well?

WALSH: Yes, ma'am.

WAXMAN: Why did you choose not to focus
on those emails?

WALSH: Quite frankly, ma'am, they
didn't seem realistic.

WAXMAN: Why not?

WALSH: They were clearly role-play.
They used the word `fantasy’ in the actual chats or emails.

SA 125–26.

On cross-examination, Agent Walsh admitted that the grouping
decision was made by numerous agents and prosecutors.

BAUM: Now, when you made that decision
that 21 out of 24 participants with Mr. Valle were engaged in fantasy
role-play, were you the only one who made that decision?

WALSH: No, sir.

BAUM: How many agents were involved in
that decision?

WALSH: Approximately eight to 10, sir.
. . .

BAUM: And how many people from the U.S.
Attorney's Office were involved in that decision?

WALSH: About two, sir.

BAUM: So eight to 10 law enforcement
officers and at least two lawyers from the U.S. Attorney's Office decided that
out of 24 people that Mr. Valle chatted or emailed with[,] 21 were fantasy
role-plays, is that correct?

WALSH: Approximately. Yes, sir.

SA 129–30.

U.S. v. Valle, supra.

The Court of Appeals went on to explain that the prosecution

now urges that the distinction between
`real’ chats and `fantasy’ role play was Valle's defense and that the district
court applied the wrong standard by forcing the prosecution to disprove the
defense theory of the case. As the exchanges above demonstrate, the
distinction was introduced and relied on by the Government's case agent. In any
event, intent is an essential element of the crime that the Government charged.
The issue, therefore, is not whether the prosecution disproved the
defense 's theory, but whether the prosecution proved its theory
that Valle's `real’ chats represented a departure from his otherwise entirely
imaginary world.

U.S. v. Valle, supra (emphasis
in the original).

The court then noted that the “Government” advances the
“[a]lternative” argument that

even if it introduced the distinction,
it did not rely on or concede the truth of the distinction because it `did not
even introduce any of the `fantasy’ conversations at trial so that [a]
comparison could be made’ with the `real’ chats. Gov't Opening Br. 41. A
sampling of the `fantasy’ chats was introduced by the defense in its
cross-examination of Agent Walsh. But regardless of how the exhibits were
introduced, the Government's own investigation concluded that forty chats
permitted the inference of conspiratorial intent, as compared to myriad other chats
that did not. The Government claims that it does not have to prove a
distinction between these two sets of chats because the jury could have
rationally found that `defendants charged with attempting or conspiring to
engage in criminal, deviant activity often contemporaneously engage in
“fantasy” behavior . . . about activity . . . that is similar to the charged
conduct.’ Id. at 43.

This contention proves too little. Once
the Government constructs its case around the theory that a certain group of
chats permits the inference of conspiratorial intent while another group of
essentially similar chats is consistent with non-criminal behavior, some
adequate explanation must be forthcoming. Where, as here, none is, the
non-criminal chats are a powerful indicator that a reasonable juror must
necessarily entertain reasonable doubt about the prosecution's case.

Unable to materially distinguish the
`real’ chats from the `fantasy’ chats, the Government relies on evidence of
`real world’ steps that Valle took in order to `prepare’ for the
kidnappings. See, e.g., Gov't Opening Brief 56–58, 60–68. For
example, the prosecution introduced evidence that Valle performed Internet
searches for how to kidnap people, how to make chloroform, and how to restrain
and cannibalize people. The prosecution also introduced evidence that Valle
researched prior kidnappings, which it argues permitted the jury to infer that
Valle was interested in how those kidnappers were caught so that he could learn
from their experiences and avoid apprehension. Id. at 63.

To be sure, Internet searches can
provide some relevant proof of intent. However, an Internet search, in and of
itself, is not criminal. Here, the searches on which the Government relies
occurred in a context of deep fantasy. As with his chats and emails, Valle's
Internet searches show that he was interested in committing
acts of sexualized violence against women. Interest may be relevant evidence of
intent, but it does not by itself prove intent. `No doubt some people commit
sex crimes because they want to turn their fantasies into reality, but most
people with criminal fantasies probably refrain from acting on them, because
they know it would be wrong, or because they do not want to risk the
penalties.’ U.S. v. Curtin, supra (Kleinfeld,
J., concurring).

The Government also relies on at least
two occasions when Valle engaged in acts of `surveillance’ of his intended
victims. First, the Government notes that Valle admitted in a post-arrest
statement that he was on Friscia's block on March 1, 2012, two days after he
allegedly agreed to kidnap her with VanHise. Gov't Opening Br. 56–58.
Valle told a government agent that he was on the block to drop off Mangan to
have lunch with Friscia, but both Mangan and Friscia testified that they had
not met for lunch that day. Valle indicated to the agent that he was on the
block only very briefly, and there is no evidence to the contrary. There is
also no evidence that he observed Friscia or her apartment building while he
was on her block. Valle's false exculpatory explanation for being on the block
is `insufficient proof on which to convict where other evidence of guilt is
weak.’ U.S. v. Johnson, 513 F.2d 819, 824 (U.S. Court of Appeals for the 2d
Circuit 1975). As the district court found, no rational juror could conclude
from this evidence alone that Valle was engaged in `surveillance.’

U.S. v. Valle, supra.

The Court of Appeals went on to explain that,

[s]econd, the prosecution and our
dissenting colleague contend that the jury could convict Valle of a conspiracy
to kidnap based on his communications with Moody Blues about Kimberly
Sauer. See Gov't Opening Br. 35–36. This evidence is
insufficient to show that Valle agreed or had the specific intent to kidnap
Sauer and, in any event, it does not establish Moody Blues's intent.

Sauer is a former college classmate of
Valle's who lives in Maryland. According to Sauer, she communicated with Valle
by text message approximately ten to fifteen times a year. Mangan testified
that she and Valle made three or four trips to Maryland during the course of
their relationship (from 2009 through September 2012) and that each time she
and Valle made an effort to see Sauer when in the area.

In January 2012, Valle asked Sauer for
her address so that he could send her a Patrolmen's Benevolent Association
card. The earliest chat between Valle and Moody Blues introduced at trial takes
place seven months later, on July 9, 2012. During this conversation, Valle
described several girls that he was `working on grabbing . . . for
thanksgiving,’ and told Moody Blues that `Kimberly [is] by far the easiest’ to
kidnap because he could `just show up at her home unannounced.’ JA 80–82. After
Valle suggested that `maybe you can make it here and help me with her, since
you have experience,’ Moody Blues responded that he lives in England but it is
`easy to get to the Big apple.’ JA 81.

Valle also told Moody Blues that he was
`single,’ had a `big gas oven,’ and that `no one is around [him] for about ¾ of
a mile.’ JA 84. The two then discussed how they would truss up Sauer and cook
her on an outdoor spit at Valle's mountain house. During this same chat,
approximately one hour after Valle wrote that he wanted to kidnap someone for
Thanksgiving, Valle told Moody Blues that he was `thinking of a Labor Day
cookout . . . with Kimberly as the main course.’ JA 86. Valle noted that she
had `been one of my favorite victims to fantasize about for almost 10 years
now.’ JA 86. Again during the same chat in early July, Valle sent Moody Blues a
link to a video of Sauer on vacation and volunteered to make chloroform
and buy rope. Moody Blues replied that `Labour day is the 3rd [of] September,
not a lot of time to sort out plane tickets etc. Will see what cheap deals I
can get.’ JA 90.

U.S. v. Valle, supra.

The Court of Appeals then goes on to explain that,

[o]ne day later, on July 10, Valle sent
Moody Blues `a word document, a blueprint of everything we will need to carry
this out.’ JA 100. The document, entitled `Abducting and Cooking Kimberly: A
Blueprint,’ has a `target date’ of September 2, 2012 for the abduction. It
includes a photograph of Sauer, and accurately describes her age and marital
status and that she is not a drug user, does not have tattoos, and drinks only
occasionally. All of the other information in this document is false,
including her last name, date of birth, birthplace, and educational history.
The entire `plan’ for abduction set out in the `Blueprint’ is as follows: `I
will arrive at some point Sunday night at her home to kidnap her. She lives in
a quiet suburban neighborhood (Pictures of her house to be added).’ The
document also lists some materials that are needed, including a car,
chloroform, rope, gag, tarp/plastic bags, gloves, and cheap sneakers. JA
267–68. After receiving the `Blueprint,’ Moody Blues asked `[m]ay I have her
address? For Googling using the Map app?’ JA 101. Valle lied that he was `not
sure’ of her exact address. Id. There is no evidence in the
record that Valle ever obtained any of the materials listed in the `Blueprint,’
or that the document was ever updated with pictures of Sauer's house or any
additional information.

At some point prior to July 12, Valle
called Sauer to tell her that he would be traveling to Maryland with his wife
and daughter for a weekend. They made plans to meet for lunch on July 22. On
July 17, Valle informed Moody Blues that he would be having lunch with Sauer.
Later in this chat, Moody Blues asked Valle if he had a recipe for chloroform.
Valle sent him a link. On July 19, Moody Blues again asked for Sauer's address,
and Valle replied that he did not know it by heart. Valle never provided Moody
Blues with Sauer's address.

On July 20, Valle conducted a number of
Internet searches relating to kidnapping, including `how to kidnap someone,’
`how to chloroform a girl,’ and `kidnapped girl.’ On July 21, Valle traveled to
Maryland with his wife and daughter. They visited several college friends, and
had the scheduled lunch with Sauer on July 22. On July 21, Valle texted Sauer `[w]e
drove by your pink building today,’ and she responded `Haha yay!’ JA 237. At
trial, Sauer testified that she understood Valle to refer to her office
building, which has pink-tinted windows, but that Valle had never visited her
at work and she had never sent him photographs of the building. She described
the lunch as `fine’ and `pleasant.’

On the evening of July 22, after Valle
returned home, he emailed Moody Blues that Sauer `looked absolutely
mouthwatering.’ JA 117. Valle and Moody Blues said nothing more about the plot
to kidnap Sauer and did not talk again for another month. On August 21, Valle
and Moody Blues began to discuss Kristen Ponticelli, a recent graduate of
Valle's high school whom he did not know. JA 264. There is no evidence in the
record that Valle and Moody Blues ever discussed Sauer or Ponticelli again
after August 21.

U.S. v. Valle, supra.

The court’s opinion then goes on to explain that,

[a]s Judge Gardephe observed, the chats
pertaining to Sauer are not materially different from the other fantasy chats.
All of the elements of this alleged plot are equally fantastical, including the
presence of the nonexistent mountain house, the human-sized oven, and the
`Blueprint.’ The `plan’ to kidnap Sauer in the `Blueprint’ is no more detailed than
is the `plan’ in Valle's Internet chats with Moody Blues, nor does the
list of materials required differ from the types of materials Valle discusses
in his chats. And critically, Valle makes concerted efforts to conceal from
Moody Blues any identifying information about Sauer that could be
used in furtherance of a kidnapping such as her last name, date of birth, and
the name of her alma mater. Although the prosecution speculates that Valle did
not share accurate information about Sauer because he did not want Moody Blues
to undertake the kidnapping without him, there is no evidence in the record to
support such an inference.

U.S. v. Valle, supra.

The Court of Appeals then began the process of articulating
its ruling, on the issue before it:

Thus, the only meaningful difference
between this alleged conspiracy and the `fantasy’ chats is the occurrence of
Valle's lunch with Sauer in Maryland during approximately the same time period
as he discussed kidnapping her with Moody Blues. Although the Government
characterizes Valle's communications with Sauer as `out of the blue,’ the
record shows that they communicated by text message in the year prior to the
alleged kidnapping plot on a regular basis and that they made an effort to see
each other when Valle was in town. Valle did not have lunch with Sauer alone,
but rather came with Mangan and their infant daughter. Moreover, the chats
between Moody Blues and Valle leading up to and following the lunch make it
impossible to conclude, without speculation, that the lunch was `surveillance’
in furtherance of a genuine conspiracy. Moody Blues makes only a single
reference to purchasing plane tickets in the July 9 chat, but that suggestion
is never brought up again. Except for the e-mail recapping the lunch on July 22
and the August 24 conversation in which their focus moves to Ponticelli after a
brief mention of Sauer, Moody Blues and Valle never again discuss Sauer or any
plot to kidnap her. In fact, Moody Blues and Valle do not speak at all for the
month after July 22, and the `target date’ of September 2 passes with no
discussion. And Valle never takes any step of any sort in furtherance of an
alleged kidnapping.

U.S. v. Valle, supra.

It went on to explain that

[w]e are in accord with the prosecution
and our dissenting colleague that a jury might be able to distill some
incriminating evidence from all of this. But `some’ evidence is not the test.
Because Valle's relationship with Moody Blues is essentially indistinguishable
from his relationship with all of the others with whom he chatted, we agree
with Judge Gardephe that a rational jury could not conclude that this evidence
was sufficient to meet the `beyond any reasonable doubt’ requirement. As our
case law instructs:

`[I]t is not enough that the inferences
in the government's favor are permissible. A court must also be satisfied that
the inferences are sufficiently supported to permit a rational juror to find
that [each element of the offense] is established beyond a reasonable doubt.

If the evidence viewed in the light
most favorable to the prosecution gives equal or nearly equal circumstantial
support to a theory of guilt and a theory of innocence, then a reasonable jury
must necessarily entertain a reasonable doubt

The court then articulated its holding, i.e., its decision
on the issue at hand:

Finally, on the basis of this evidence,
it is impossible to determine beyond a reasonable doubt whether Moody Blues—or for that matter any of
Valle's other alleged co-conspirators—ever had the specific intent to commit a
kidnapping. We have taken a bilateral approach to the crime of conspiracy: at
least two people must agree. `When one of two persons merely pretends to agree,
the other party, whatever he may believe, is in fact not conspiring with anyone.' See U.S. v. Bicaksiz, 194 F.3d 390, 398 (U.S. Court of Appeals for the 2d Circuit 1999).
The only evidence the Government offers to demonstrate Moody Blues's intent is
the words he used in the chats. Gov't Reply Br. 21–22. As we have explained,
these chats of `real’ criminal intent are rife with indicia of fantasy and
contain the same substantive elements as the chats the Government concedes are
`fantasy.’ The conclusion that the chats do not support a finding of Valle's
conspiratorial intent applies with equal force to Moody Blues.

On this record, no reasonable juror
could conclude beyond a reasonable doubt that Valle possessed the specific
intent to kidnap anyone or that he and his alleged co-conspirators ever formed
an agreement to actually carry out any of the purported kidnappings. The mere
indulgence of fantasy, even of the repugnant and unsettling kind here, is not,
without more, criminal. We therefore affirm the district court's judgment of
acquittal as to the conspiracy count.

U.S. v. Valle, supra.

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